Over and Out: The Conclusion of Radio Martí After a Long History of Controversy Under Contradictory Legal Standards [Part II]

Taylor Hartstein

This post is the second in a two-part series on the legal debate over Radio and TV Martí, the U.S. broadcasting programs aimed at Cuba. Part I explores the history of the Martís in the context of U.S.-Cuba relations and the Castro regime’s arguments against the Martís under domestic and international law. Part II discusses the possibility of dispute resolution under the International Telecommunications Union as well as a First Amendment-based defense of the Martís.

The International Telecommunications Union

The International Telecommunications Union (“ITU”) is a specialized agency of the United Nations that regulates international telecommunications. The organization seeks, among other things, “to maintain international cooperation and national use of telecommunications,” “to harmonize actions of all countries planning to use D[irect] B[roadcasting ] S[ystems],” and “to allocate and improve the use of the radio frequency spectrum.”[1] The main institutional mechanism for addressing specific problems is the ITU’s World Administrative Radio Conferences (“WARCs”).[2] The 1971 WARC adopted a specific Radio Regulation 428A, which requires states to reduce “spillover broadcasts” into other countries “to the maximum extent practicable” unless a previous agreement is established between the countries.[3] While this regulation could arguably require the United States to take steps to minimize the effects of its domestic radio on Cuba, the U.S. has construed the regulation merely as a technical guideline, arguing that any broader construction would violate the “free flow” principle of Article 19 of the UDHR.[4]

Unsurprisingly, state advocates of national sovereignty in the realm of radio broadcasting claim that the regulation functionally prohibits international broadcasting without the prior consent of the receiver state.[5] Neither of these views has yet prevailed. Several subsequent UN attempts to specifically require prior consent have either failed or resulted in ambiguity regarding how consent must be given, leaving the relevant international law on the issue unresolved.[6] The situation is further complicated by the fact that the provisions also apply to jamming that interferes with the radio broadcasts of other member nations. Since Cuba has persistently jammed Radio Martí, and occasionally interfered with U.S. radio broadcasting, it can hardly argue that it approaches the dispute with clean hands.[7] As long as the ITU regulations permit multiple, contradictory interpretations, individual states are likely to resort to self-help remedies such as jamming and circumvention.[8]

While ITU action related to radio broadcasting has not provided any ultimate answers to the legal implications of the Martís, the organization is much clearer regarding TV broadcasting. In 1990, the International Frequency Registration Board (“IFRB”), an arm of the ITU, found that TV Martí was operating in contravention of the ITU’s radio regulations and requested that the United States eliminate the interference.[9] Since Cuba had registered the channel used by TV Martí (channel 13), use of the channel by the U.S. constitutes interference. However, since Cuba chooses not to air programming on the channel at the times it is used by TV Marti, the U.S. argues that there is no actual interference and ignores the IFRB decision.[10] Were Cuba to air something on the channel at the same time, an actual conflict would exist and the U.S.’s argument would no longer be tenable.

Notably, the ITU founding documents do contain provisions for dispute settlement between parties, and the U.S. and Cuba are both signatories.[11] While member states may choose to enter into several forms of binding arbitration in order to settle disputes with other members, there is no requirement that they do so unless they are also members of the Optional Protocol on the Compulsory Settlement of Disputes, to which neither the U.S. nor Cuba is a signatory.[12] If the states desired an impartial adjudication by neutral third parties, it would be easily available; however, this is unlikely to occur in the near future.

The ITU has not yet provided a definitive resolution to the problem of unwanted radio and TV broadcasts, but it could be the source of such a solution in the future. Specifically, if both the U.S. and Cuba were willing to consent to a binding arbitration or to become signatories to the Optional Protocol on Compulsory Dispute Settlement, the UN body would be able to resolve the situation in a binding and final decision. This would require putting the decisions in the hands of a panel of arbitrators. It seems more likely that the two countries might come to an agreement as part of a bilateral or multilateral agreement, which would give them more flexibility to tailor their obligations to a particular set of mutual concessions. In any case, the ITU is a valuable mechanism for evaluating the international law contentions surrounding the Martís.

The First Amendment of the United States Constitution

An additional argument offered by supporters of the Martís is that eliminating or censoring the broadcasts would amount to a violation of the protection of free speech embodied by the First Amendment to the U.S. Constitution.[13] At its outset, this appears to be a rather strange argument. The First Amendment is part of the Bill of Rights, which was added to the U.S. Constitution to protect the people from abuse by a powerful federal government. Construing the amendment to empower the federal government to engage in radio wars on the nation’s behalf is, at the very least, certainly beyond the contemplation of its framers.[14] Furthermore, it is uncontroversial that the United States Congress could act legislatively to end funding to the Martís. The U.S. government may decide to spend taxpayer money to fund proprietary government speech that it deems to be in the public interest, and can cease funding or deny a subsidy in order to alter that speech without violating the First Amendment.[15]

Conclusion

While the current state of international law relevant to the operation of TV and Radio Martí presents contradictions and ambiguities, there are several means by which the U.S. and Cuba could wind down the broadcasts. The most direct would be a bilateral or multilateral treaty pledging obligations in exchange for mutual concessions. The U.S. and Cuba could also pursue arbitration under the auspices of the International Telecommunications Union, which could provide a neutral, third party resolution. Finally, Congress could act unilaterally to defund the Office of Cuba Broadcasting or change its institutional structure. Ultimately, then, if the U.S. and Cuba fail to end three decades of controversy surrounding TV and Radio Martí, it will not be for a lack of effective means to do so.


[1] International Telecommunication Convention, Oct. 25, 1973, 28 U.S.T. 2495, 2511, T.I.A.S. No. 8572; Report on the Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space, U.N. Doc. A.101/10, at 96 (1982).

[2] See Stephen D. Bayer, The Legal Aspects of TV Marti in Relation to the Law of Direct Broadcasting Satellites, 41 Emory L.J. 541, 556 (1992).

[3] Id. at 559 (Citing Final Acts of the World Administrative Radio Conference for Space Telecommunications, I.T.U., Radio Regs. No. Spa 2-428A (1971) reprinted in 23 U.S.T. 1527, 1648).

[4] Id.

[5] Id. at 561.

[6] Id. at 562–63.

[7] See Monroe Price, Public Diplomacy and the Transformation of International Broadcasting 21 Cardozo Arts & Ent. L.J. 51, 56–57 (2003).

[8] See Nutall, Note, Defining International Satellite Communications as Weapons of Mass Destruction 27 Hous. J. Int’l L. 389, 408 (2004–2005).

[9] See Bayer, supra Note 2 at 573 (Citing Message to State Dept. from IFRB (Apr. 1990), reprinted in President Pushes TV Marti; ITU Pushes Back, BROADCASTING, Apr. 9, 1990, at 37).

[10] Id.

[11] See Collection of Basic Texts Adopted by the Plenipotentiary Conference, International Telecommunications Union (2015 Edition), Chapter VI “Arbitration and Amendment” available at http://www.itu.int/dms_pub/itu-s/opb/conf/S-CONF-PLEN-2015-PDF-E.pdf. See also “List of Members of the International Telecommunications Union,” ITU Global Directory available at http://www.itu.int/online/mm/scripts/mm.list?_search=ITUstates&_languageid=1.

[12] Compulsory Settlement of Disputes, Optional Additional Protocol to the International Telecommunication Convention, Montreaux, 1965 available at http://www.itu.int/dms_pub/itu-s/oth/02/01/S020100001D4002PDFE.PDF.

[13] See Bayer supra Note 2 at 556–57. U.S. Const. amend. I.

[14] Obviously this is partially due to the technological limitations of the founding era.

[15] See Regan v. Taxation With Representation of Wash., 461 U.S. 540, 550 (1983); see also Arkansas Writers’ Project, Inc. v. Rigland, 481 U.S. 221, 237 (1987).

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